Articles Posted in Workplace Accidents

mountain-of-trashI was sad to learn of the accidental death of a Seneca Meadows employee last Saturday. Seneca Meadows is a local (Seneca Falls and Waterloo, Seneca County, NY) landfill which (controversially) takes in tons of trash from all over the Northeast.  It is a huge operation involving many machines and vehicles.  This is not the first fatality there.

The victim, employed by Seneca Meadows, was operating a “tipper machine” when he was struck by a tractor trailer being backed up to unload garbage onto the tipper machine. The driver of the tractor trailer was not employed by Seneca Meadows, but rather by another company, which is good news for the victim’s family.

Why is that good news?  Because the family — unlike the families of most on-the-job wrongful death victims — has a good chance of getting fairly compensated. Most victims of on-the-job injuries are not fairly compensated because their only resort is workers’ compensation, which offers only an embarrassingly small sum of money for the loss of a father, husband, and breadwinner.

fernando
Look at this kid! Fernando Vanegas, 19 years old. Same age as my son Sebastian, who just went off to college.  Full of life, of hopes, of dreams, just like Sebastian. Fernando came to Queens, New York from Ecuador only a year ago to reunite with his parents whom he had not seen in 15 years. As an immigrant with almost no English, the best job he could land was in the construction industry. Dangerous work. He would come home at night and tell his parents how frightening his work was; close calls involving retaining walls almost falling on him. Then, last Thursday, he did not come home. A retaining wall collapsed, burying him and two other workers in a heap of cinder blocks. He died.

He should not have died. The warning signs were all there.  The site should have been shut down. Several safety violations had recently been reported, including that the retaining wall was not stable.  The City failed to shut down the work.

Fernando was a canary in a coal mine. Now of course the site is shut down.  Now of course, at least for a while, the City will err on the side of caution, and shut down similar sites.  Shame on his employer, and shame on the City of New York inspectors, for allowing him to die under such conditions, without heeding such obvious warning signs of danger.

Construction is almost the most dangerous job in America, bested only by mining. And like mining, greed often plays a part in accidents. Companies take cost-saving shortcuts at the expense of safety to try to turn a bigger profit.

falls-200x300
Case on point.Last Sunday a 12-ton air handling unit snapped loose from a crane and plummeted 30 stories to the street below in Manhattan. Ten people were injured. Obviously they were using a cable of insufficient strength for the job.

As a recent NYT article points out, this is only the most recent dangerous mishap this year in the New York construction industry. In fact, this year is poised to match 2008 – the year two cranes toppled in New York City claiming 19 lives – as the most deadly construction year in New York history.

Picture of Michael Bersani .jpgCan you sue for compensation beyond your workers’ compensation benefits if you are injured on the job in New York? Maybe. Find out how by watching my new video about New York personal injury lawsuits for on-the-job injuries.

Keep safe!

Mike Bersani

images[5]-13274.jpgWho wouldn’t want to be Spider-man? His outfit is so much cooler than Superman’s. And what about swinging between skyscrapers by spitting that web-gook from your wrists? Isn’t that a more thrilling way of getting around than that all-so-boring Superman extended-arm flight?

Not so fast! Be careful what you wish for. At least that’s what three Spider-man actors are saying.

Let me take you back to December of 2010, when I blogged about Spider-man’s incredible 30-foot plunge to the stage floor in a Broadway performance of the musical, “Spider-Man: Turn Off the Light”. His spider-swing-line failed, catapulting him to the stage below in front of a horrified crowd of Spider-man fans. But Spidey — as I like to call him — in true superhero fashion, recovered and returned to the show within months. The show must go on!

ladder.jpgDo you think you might be a safer driver if your traffic convictions and accidents were posted on line and easily searchable so that all your neighbors and friends could look your record up?

If your answer to that question is “yes”, then you’ll like a new rule by the Safety and Health Administration (“OSHA”) which makes companies’ safety records easily available on a government website.

Why this new rule? The shame factor. OSHA’s thinking is that if companies with a bad safety record know their record will not remain hidden is some dusty notebook in a government basement, but rather see the light of day on the world-wide web, they might think twice about cutting safety corners. In addition, prospective employees will be able to compare, when deciding which job to accept, not only the wages of the employers but also their safety records. As a side benefit, personal injury lawyers like me can build negligence cases against repeat offenders with greater ease.

chess.jpgImagine a three-way chess game where two players actually play, while a third sits by watching. Let’s call the guy watching “the watcher” (I’m brilliant!). The watcher is going to play you next. But here’s the thing: If you win the game you are now playing, the watcher will actually play you. But if you lose, then the watcher automatically wins his game against you and you automatically lose. No need to actually play that game. In other words, if you lose against your opponent, you lose against both your opponent and the watcher. But if you win, you win only against your opponent, and have to play the watcher to take a second win. In other words still, a loss makes for two losses, but a win makes for only one win.

Sound fair? Of course not! But those are the rules of the game the Court of Appeals has recently signed off on in Auqui v. Seven Thirty One Limited Partnership. And the player with the one-loss-equals-two-losses dilemma is YOU if you are an injured worker with a comp claim against your employer as well as a “third-party action” (personal injury lawsuit) against someone else.

Here’s how it works: Let’s say in both cases (comp claim and personal injury lawsuit) you are claiming you are disabled. Your workers’ comp hearing comes up before your personal injury trial. If the comp judge finds you NOT disabled, the personal injury lawsuit judge will rule you are automatically NOT disabled for the purposes of the personal injury trial, too. But if the comp judge finds you ARE disabled, you can’t use that ruling in your favor at the personal injury trial. You have to prove that all over again to the jury, who will never learn of the prior comp disability finding.

migrant worker.jpgShould undocumented Mexican and Guatemalan farm workers who cross our U.S. border illegally, work in New York illegally, then get seriously injured through the negligence of others, then file a personal injury lawsuit in New York against those others, then go back home because they can no longer work or afford to live here while they await their trial date, and then can’t get visas to get back to the U.S. for their depositions or trial, be allowed to give video-taped deposition and trial testimony from their home countries? After all, the general rule is that a plaintiff must present him or herself for depositions and trial testimony in New York where they filed the lawsuit. But still, should their cases be dismissed for failing to appear in New York when they can’t get visas to get back here, even if the visas were denied because they came here illegally to begin with?

This was the question I recently presented to a trial judge, and then to an appellate court. I argued that a “balancing of the scales of justice” required the court to allow the testimony of my injured migrant farm workers by video-conferencing from abroad. I argued that, on one side of the scale of justice, if testimony was allowed to be taken from abroad, both plaintiffs and defendants would have their day in “court”, sort of, and justice would be served, although there would be quite a bit of inconvenience to the parties and the Court, and of course it would be better to have the plaintiffs testify in person before the jury. On the other side of the scale, if the Court required plaintiffs to appear physically in Court in New York for depositions and trial, their claims would be dismissed when they failed to show up, no trial would be had, and no justice would be done.

In other words, on the one hand, there was a less-than-perfect forum for justice, but a satisfactory one nonetheless, and on the other, there is no justice at all.

armed robber.jpg.jpgMy fellow Syracuse personal injury lawyer, Joseph Cote, who besides being a great lawyer, is a really nice guy, recently won a nearly $3.4 million Rochester NY personal injury verdict for a security guard shot in the face during a robbery at a Wilson Farms convenience store in Rochester.

The jury held the chain-convenience store’s corporate owner 50% responsible and the robber (who was never caught) 50% liable. How could the store be held liable, even half liable, for an armed robber shooting its security guard? Well, Joe argued that the convenience store should have required its employees to move cash from the store to the bank more often. Instead, Wilson Farms became a favorite piggy bank for armed robbers because they knew there was likely to be a big payday inside. In the past decade, armed robbers targeted the Rochester area Wilson Farms stores a grand total of 126 times, which included six shootings and one death.

Joe’s argument reminds me of what Jesse James said when asked why he robbed banks: “Because that’s where the money is”, he quipped.

celltower.jpgNews reports say a man working on a cell phone tower near Marcy, New York, suffered serious injuries today after falling more than 80 feet. He is reported to have suffered multiple broken bones and was taken to Utica’s St. Elizabeth’s Medical Center.

Falls from a height like that can cripple, maim or kill. We had a similar case (fall from a cell tower) a few years ago, which we brought to a successful conclusion. To win it, we used a special law that helps workers who fall from rooftops, scaffolds and towers. It’s called Labor Law 240, or “the scaffold law”. It allows a fallen worker, under certain circumstances, to sue anyone with an ownership interest in the tower or the land the tower is on, including leaseholders, for compensation above and beyond what the worker will get in workers’ compensation from his employer.

The key to winning this kind of case is to show that the worker was on the tower to “repair” something or to inspect something that was broken or malfunctioning. If his task involved “repair” work, or inspection work in contemplation of repair work, he is generally protected by Labor Law 240. But if he was performing mere “routine maintenance” of the tower, then he cannot prevail under Labor Law 240. He will generally be stuck with just his workers’ compensation benefits, which (as anyone who has been on comp knows) generally isn’t enough to pay the bills. It covers at most only about 2/3 of lost wages.

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